The opinion
On Rehearing.
A careful review of the pleadings of appellant in this case has convinced us that it made no issue in the lower court of ownership of an easement across appellee’s land. The allegation is merely that defendant “gave his oral consent to the City that such lines could be laid across” his premises. Upon this statement of fact appellant alleged that appellee was injuring and threatening to injure its sewer system as and where it crossed his premises. The prayer was merely that the- temporary injunction previously granted restraining appellee from injuring the-sewer system be made permanent. The prayer was also for $60,000' damages to the sewer system. To this petition appellee replied by a' sworn denial of all affirmative allegations made against him, and by further pleading for damages for the trespasses committed by appellant against him and for the appropria- ■ tion made by appellant of the right of way across his premises.
On this statement appellee insists that we erred in our original opinion in granting the injunction against him. This contention must be sustained. Appellant was entitled to an injunction against appellee only on the theory that he was threatening injury to its property. By his sworn answer these allegations were denied, and since appellant offered no proof in support of its allegations and the case was tried merely upon the peti-' tion and answer, the court correctly dissolved the temporary injunction and refused to grant a permanent injunction against ap- , pellee restraining Mm from doing things in the future that he had not done in the past, and was not threatening to do.
However, under article 3269, R. S., and the authorities cited in our original opinion, appellee was not entitled to a writ of possession against appellant and, for that reason, the lower court was in error in granting him an injunction restraining appellant from entering upon his premises and from using the sewerage line across his premises. Whether the trial court was in error or not in sustaining the special exceptions against appellant’s petition, the order we have just made grants it all rights to which it was entitled under its allegations and the answer of appellee on the merits.
When the special exceptions were sustained against appellant’s petition, it appears that appellee abandoned his claim for damages for the trespass and appropriation of the right of way, and that the only two issues adjudicated by the lower court were: (a) The appellant’s right to an injunction; (b) ap-pellee’s right to an injunction. With appel-lee’s plea for damages eliminated, these were in fact the only two issues made by the pleadings in the lower court. It follows that in affirming the judgment of the lower court refusing appellant an injunction, and in dissolving the injunction granted to appellee, we have disposed of all the issues involved in the judgment appealed from.
Appellee also correctly insists that we should not reverse the case to give appellant an opportunity in this case to amend its pleadings and ask for condemnation. So in reforming and affirming the judgment of the lower court it is our order that nothing said on this appeal by us nor adjudicated by the lower court shall be res adjudicata of ap-pellee’s right to sue appellant for damages for trespassing upon his premises-, nor of appellant’s right to reply thereto by a cross action asking for condemnation under article 3269, nor by any allegation of fact that would constitute an answer to appellee’s prayer for damages.
The motion for rehearing is granted and the judgment of the lower court reformed and affirmed, with costs taxed against appellee.